This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on May 12, 2000, basing its approval solely on the facts and circumstances stated herein.
 

May a county supervisor donate real property to the county for the purpose of establishing a rubbish site in a certain location within the county?
 

State law restricts the Mississippi Ethics Commission to interpreting and issuing opinions on Sections 25-4-101 through 25-4-119, 1972 Mississippi Code Annotated and Article IV, Section 109, Mississippi Constitution of 1890. Therefore, this opinion does not address the Mississippi laws outside the Commission's jurisdiction nor the governmental entity's internal rules and regulations.
 

The pertinent conflict of interest laws to be considered here are:
 

Constitutional Section 109 states:
 

"No public officer or member of the legislature shall be interested, directly or indirectly, in any contract with the state, or any district, county, city, or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member, during the term for which he shall have been chosen, or within one year after the expiration of such term."
 

Code Section 25-4-103(f)(i)(ii), (g)(i), (h), (l), (n) and (p)(i)(ii)(iii) states:
 

"(f) 'Contract' means:
 

(i) Any agreement to which the government is a party; or
 

(ii) Any agreement on behalf of the government which involves the payment of public funds.
 

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:
 

(i) Counties.
 

(h) 'Governmental entity' means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.
 

(l) 'Pecuniary benefit' means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain. Expenses associated with social occasions afforded public servants shall not be deemed a pecuniary benefit.
 

(n) 'Property' means all real or personal property.
 

(p) 'Public servant' means:
 

(i) Any elected or appointed official of the government;
 

(ii) Any officer, director, commissioner, supervisor, chief, head, agent or employee of the government or any agency thereof, or of any public entity created by or under the laws of the State of Mississippi or created by an agency or governmental entity thereof, any of which is funded by public funds or which expends, authorizes or recommends the use of public funds; or
 

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of funds authorized to be expended by the government."
 

Code Section 25-4-105(1) and (2) states:
 

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.
 

(2) No public servant shall be interested, directly or indirectly, during the term for which he shall have been chosen, or within one (1) year after the expiration of such term, in any contract with the state, or any district, county, city or town thereof, authorized by any law passed or order made by any board of which he may be or may have been a member."
 

Pertinent facts and circumstances provided by the requestor, absent identifying data, are set forth as follows and considered a part of this opinion.
 

For and on behalf of the County Board of Supervisors, I would request your opinion as to the following set of circumstances, to-wit:
 

We need a rubbish site in a certain location within the County, Mississippi, and have been unable to find a site. A Supervisor has volunteered to provide a site without cost to the County for this public purpose. Please advise if this is acceptable under current statute.
 

The Commission formally adopts Advisory Opinions No. 93-160-E and No. 92-149-E in response to this request and by attachment incorporates it into this opinion.
 

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.
 

The donation of the real property to the county for use as a rubbish site by the supervisor would not as such violate the state conflict of interest laws.
 

For this transfer of real property to be a donation, it must be a gift to the county whereby the supervisor transfers the title to the real property to the county without the county compensating the supervisor for it in any way. The supervisor's transfer of the real property must be a true gift whereby the supervisor voluntarily transfers the title and possession of the real property to the county without any consideration or benefit accruing to the supervisor.⁽¹⁾
 

However, Constitutional Section 109 and Code Section 25-4-105(2), both cited above, would be violated should the transfer of the real property from the supervisor to the county not be a true donation or should there be an interest or benefit accruing to the supervisor similar to that described in the attached Advisory Opinion No. 92-149-E. The Commission does recognize that the donation of land for a rubbish site is most unlikely to enhance the value of the surrounding real property as did the donation of the real property for a convention center in the attached Advisory Opinion No. 92-149-E.⁽²⁾
 

As set forth in the attached Advisory Opinion No. 93-160-E, the requestor is cautioned to advise the supervisor to recuse himself from the board of supervisors' discussions and actions regarding his donation of the real property for the rubbish site so as to avoid a violation of the above cited Code Section 25-4-105(1). This is based on the fact that the donation could provide a pecuniary benefit to the supervisor such as a tax benefit in the form of a deduction or writeoff.
 

Code Section 25-4-105(1) prohibits public servants from using their official positions to obtain a pecuniary benefit for themselves, a relative or a business with which they are associated.
 

To avoid using their official positions to obtain a pecuniary benefit, the public servants must totally and completely recuse themselves from subject matters providing the pecuniary interests. An abstention is a vote with the majority of the governing entity's board and therefore does not qualify as a recusal.
 

A total and complete recusal requires that the public servant not only avoid debating, discussing or taking action on the subject matter during the official meeting, but also avoid discussing the subject matter with other board members, staff or any other person prior to and after the official meeting. This includes casual comments, as well as detailed discussions, made in person, by telephone or by any other means.
 

Also to properly recuse oneself from a matter, the public servant must leave the room or area where such discussions, considerations and/or actions take place. The minutes of the governing entity's board should state the public servant left the meeting by showing him or her absent for that matter.
 

Ronald E. Crowe

Executive Director

1. Black's Law Dictionary, 5^th Ed., defines the term "gift" as "A voluntary transfer of property to another made gratuitously and without consideration."

2. Advisory Opinion No. 92-149-E, pg. 3: "An interest is also present on the part of the prior Commissioner should a parcel of the land be donated to the city and/or the Convention Commission because of the likelihood of enhanced value which would accrue to the partnership by having the value of its surrounding land likely increased. No such interest would exist should not only the Convention Center parcel, but also the surrounding land owned by the partnership be donated."